from the hypocrite dept

Oh, Rupert Murdoch. When we last checked in with him, he was literally begging Facebook to pay News Corp. money because (he claimed) News Corp was "enhancing the value and integrity of Facebook." We noted at the time that Murdoch -- a staunch public defender of free market capitalism and a loud opponent of "socialism" -- seemed to be a bit hypocritical in effectively demanding a corporate handout from other, more successful companies, when his own company had struggled for years to adapt to the internet.

Robert Thomson, the CEO of Murdoch’s company, News Corp., took a step beyond criticism last week in an investor call, when he advocated the creation of an “algorithm review board,” which would essentially regulate the secret formulas platforms use to determine, among other things, what news is shown to which people.

But while we’ve won the efficiency argument, we have yet to persuade people that the market does better because it is more moral — or that socialism fails because it is largely immoral in its denial of fundamental freedoms.

To the contrary, too many people think that the market succeeds because it is based on a vice — greed. And that socialism is better, because it is based on a virtue — sharing.

Naturally, they conclude from this one of two things: that the way to make capitalism more just and more humane is to temper it by injecting a large dollop of government-mandated sharing, or that, like President Obama, government is better.

Or how about this gem:

How often do you hear the same people who say they are for free trade then push for stronger anti-dumping laws, a backdoor form of protectionism?

How often do we hear the same politicians who say they believe in free markets go on to carve out a special tax credit for some industry they favor?

Oh, Rupert, why it happens all the time. Sometimes from people like yourself.

Crony capitalism is not capitalism. It’s cronyism.

Yes. So why are you trying to get your crony's to regulate your competitors who have done a much better job than you in the market?

The market succeeds because it gives people incentives to put their own wants and needs aside to address the wants and needs of others. To succeed, you have to produce something that other people are willing to pay for.

And if he fails to get people to pay for it, Rupert Murdoch will run to the government, demanding that more successful companies just pay him, and then will also advocate for heavily regulating those companies while pretending to be for the free market and against cronyism.

What’s fair about taking money from people who’ve earned it and giving it to people who didn’t?

In short, as we work for freer markets, we must also work to persuade our fellow citizens that we do so not simply because a free market is more efficient but because it is fair and just and right.

Yes, Rupert Murdoch believes this right up until his own companies have trouble adapting and competing. Then he goes running to government to regulate those companies who are actually succeeding.

There may be reasonable arguments for certain kinds of regulations. But Murdoch's only reason for calling for regulations of internet companies -- after whining about socialism and talking up free markets -- is pretty blatantly an attempt to whine for a handout for his own businesses that have failed to adapt to changing times.

from the consequences-of-lugambo dept

Although blogging may have lost its early excitement for many, in some countries it still represents a vital channel for news that may not be available elsewhere. For example, as Global Voices explains:

Blogging emerged in Tanzania around 2007 and became popular as an alternative news platform with educated, middle class people, as well as politicians and political parties.
In Tanzania, where media historically holds strong ties to government interests, blogging opened up possibilities for individuals to establish private news outlets that proved immensely powerful in terms of reach and readership.

The current Tanzanian government is not very happy about this uncontrolled flow of information to the people. But instead of anything so crude as shutting down blogs directly, it has come up with a more subtle, but no less effective, approach:

On March 16, 2018, the United Republic of Tanzania issued the Electronic and Postal Communications (Online Content) Regulations demanding that bloggers must register and pay over USD $900 per year to publish online.

applicants are expected to fill a form detailing the estimated cost of investment, the number of directors and stakeholders in the platform, their share of capital, staff qualifications, expected dates of commencing operations, besides future growth plans.

But even after providing this documentation, authorities still reserve the right to revoke a permit if a site publishes content that "causes annoyance, threatens harm or evil, encourages or incites crimes" or jeopardizes "national security or public health and safety." Officials could also force managers to remove "prohibited content" within 12 hours or face fines not less than five million shillings ($2,210) or a year in prison.

The situation is slightly easier in Tanzania's northern neighbor, Uganda. Under a new order there (pdf), "All online data communication service providers, including online publishers, online news platforms, online radio and television operators" are required to register with the Uganda Communications Commission. However, there's no mention of fees, or punishments for non-compliance. But if life for Ugandan bloggers seems to be easier than for those in Tanzania, a new daily tax on social media is designed to discourage ordinary users from engaging in what Ugandan President Yoweri Museveni calls "lugambo", or gossip, online. A report in the local Daily Monitor newspaper quotes the President as saying:

"I am not going to propose a tax on internet use for educational, research or reference purposes... these must remain free. However, olugambo on social media (opinions, prejudices, insults, friendly chats) and advertisements by Google and I do not know who else must pay tax because we need resources to cope with the consequences of their lugambo"

The amount of the daily tax is not clear -- a BBC report on the move says it might be either 100 or 200 Ugandan shillings ($0.013 or $0.027) a day -- and there are no details yet on how the new law will be enforced and the taxes collected for services deemed to involve "gossip". But as another Global Voices post notes, this social media tax is just the latest clampdown on the online world in Uganda. It quotes a January 2018 report from Unwanted Witness, a Ugandan NGO, which said:

2017 registered the highest number of Ugandans ever arrested for their online expression and these arrests are clearly targeted crackdown on free flow of information and speech on the Internet.

Different as they are, what the moves in Tanzania and Uganda both show is African governments coming up with new ways to muzzle online commentators that seek to tell people what the official media don't.

from the bad-idea,-worse-implementation dept

They’ve introduced a bill that would give online platforms such as Facebook and Twitter three days to investigate whether a given account is a bot, to disclose that it’s a bot if it is in fact auto-generated, or to remove the bot outright.

The bill would make it illegal for anyone to use an automated account to mislead the citizens of California or to interact with them without disclosing that they’re dealing with a bot. Once somebody reports an illegally undisclosed bot, the clock would start ticking for the social media platform on which it’s found. The platforms would also be required to submit a bimonthly report to the state’s Attorney General detailing bot activity and what corrective actions were taken.

This is ridiculous for a number of reasons. First, it assumes the purpose of most bots is to mislead, hence the "need" for upfront disclosure. The ridiculousness of this part of the law's many faulty premises is only further underscored by a bot created by the legislator behind the bill, Bob Hertzberg. His bot's bio says [emphasis added]:

I am a bot. Automated accounts like mine are made to misinform & exploit users. But unlike most bots, I’m transparent about being a bot! #SB1001 #BotHertzberg

Hertzberg's bot must have been made to "misinform and exploit users," at least according to its own Twitter bio. And yet, the account's tweets appear to disseminate actual correct info, like subcommittee webcasts and community-oriented info. It's good the bot is transparent. But it's terrible because the transparency immediately follows a line claiming automated accounts are made apparently solely to misinform people.

Plenty of automated accounts never misinform or exploit users. Techdirt's account automatically tweets each newly-published post. So do countless other bots tied into content-management systems. But the bill -- and bill creator's own words -- paint bots as evil, even while deploying a bot in an abortive attempt to make a point.

Going on from there, the bill demands sites create a portal for bot reporting and starts the removal clock when a report is made. User reporting may function better than algorithms when detecting bots spreading misinformation (putting bots in charge of bot removal), but this still puts social media companies in the uncomfortable position of being arbiters of truth. And if they make the "wrong" decision and leave a bot up, the government is free to punish them for noncompliance.

The bill also provides no avenue for those targeted to challenge a bot report or removal. (And no option for sites to challenge the government's determination that they've failed to remove bots.) This is a key omission which will lead to unchecked abuse.

"We need to know if we are having debates with real people or if we’re being manipulated," said Democratic State Senator Bob Hertzberg, who introduced the bill. "Right now we have no law and it’s just the Wild West."

So, summary executions of bots by social media posse members? Is that the "Wild West" you mean, one historically notorious for its lack of due process and violent overreactions?

Here's the other excuse for bad lawmaking, via an advocate for terrible legislation.

"California feels a bit guilty about how our hometown companies have had a negative impact on society as a whole,” said Shum Preston, the national director of advocacy and communications at Common Sense Media, a major supporter of Hertzberg’s bill. “We are looking to regulate in the absence of the federal government. We don’t think anything is coming from Washington."

So, secondhand guilt justifies the direct regulation of third-party service providers? That's almost worse than no reason at all.

And this isn't the only bad bot bill being considered. Assemblymember Marc Levine wants all bots to tied to verified human beings. The same goes for any online advertising purchases. Levine feels his bill will help fight the bot problem, but his belief is predicated on a profound misunderstanding of human behavior.

By identifying bots, users will be better informed and able to identify whether or not the power of a group’s influence is legitimate. This will mitigate the promulgation of misinformation and influence of unauthentic social media campaigns.

Yes, telling people the stuff they think is legitimate isn't legitimate always results in people ditching "illegitimate" news sources. Especially when that info is coming from a government they don't like presiding over a state many wish would just fall into the ocean. Trying to fight a bot problem largely associated with alt-right groups with legislation from coastal elites is sure to win hearts and minds.

A bot-reporting portal with no recourse provisions -- and a possibile "real name" requirement added into the mix -- will become little more than a handy tool for harassment and hecklers. The cost of these efforts will be borne entirely by social media companies, which also will be held responsible for the mere existence of bots the Californian government feels might be misleading its residents. It's bad lawmaking all around, propelled by misplaced guilt and overstated fears about the democratic process.

from the it's-a-mess dept

In my last post, I described why it was wrong to focus on claims of Facebook "selling" your data as the "problem" that came out over the weekend concerning Cambridge Analytica and the data it had on 50 million Facebook users. As we described in detail in that post, that's not the problem at all. Instead, much of the problem has to do with Facebook's utter failure to be transparent in a way that matters -- specifically in a way that its users actually understand what's happening (or what may happen) to their data. Facebook would likely respond that it has tried to make that information clear (or, alternatively, it may say that it can't force users to understand what they don't take the time to understand). But I don't think that's a good answer. As we've learned, there's a lot more at stake here than I think even Facebook recognized, and providing much more real transparency (rather than superficial transparency) is what's necessary.

But that's not what most people are suggesting. For example, a bunch of people are calling for "Know Your Customer" type regulations similar to what's found in the financial space. Others seem to just be blindly demanding "oversight" without being able to clearly articulate what that even means. And some are bizarrely advocating "nationalizing Facebook", which would literally mean giving billions in taxpayer dollars to Mark Zuckerberg. But these "solutions" won't solve the actual issues. In that article about "KYC" rules, there's the following, for example:

“They should know who’s paying them,” said Vasant Dhar, a professor of information systems at New York University, “because the consequences are very serious.” In December, Dhar wrote an op-ed calling for social media regulation — specifically, something similar to the “know your customer” laws that apply to banks. “The US government and our regulators need to understand how digital platforms can be weaponized and misused against its citizens, and equally importantly, against democracy itself,” he wrote at the time.

Antonio García-Martinez, Facebook’s first targeted ads manager, thinks so too. “For certain classes of advertising, like politics, a random schmo with a credit card shouldn’t just be able to randomly run ads over the entire Facebook system,” he told me.

Except... that has literally nothing to do with what the Cambridge Analytica controversy is all about. And, anyway, as we've discussed before, the Russians bent over backwards to pretend to be Americans when buying ads, so it's not like KYC rules would really have helped for the ads. And the whole Cambridge Analytica may have involved some ads (and lots of other stuff), but Facebook knew who "the customer" was in that instance. And it knew how an "academic" was slurping up some data for "academic research." Knowing your customer wouldn't have made the slightest difference at all here.

Even Tim Berners-Lee, who recently stirred the pot by suggesting regulations for social media doesn't seem to have much concrete information that would have mattered here.

What’s more, the fact that power is concentrated among so few companies has made it possible to weaponise the web at scale. In recent years, we’ve seen conspiracy theories trend on social media platforms, fake Twitter and Facebook accounts stoke social tensions, external actors interfere in elections, and criminals steal troves of personal data.

We’ve looked to the platforms themselves for answers. Companies are aware of the problems and are making efforts to fix them — with each change they make affecting millions of people. The responsibility — and sometimes burden — of making these decisions falls on companies that have been built to maximise profit more than to maximise social good. A legal or regulatory framework that accounts for social objectives may help ease those tensions.

I don't think Tim is wrong per se in arguing that there are issues in how much power is concentrated between a small group of large companies -- but I'm not sure that "a legal or regulatory framework" actually fixes any of that. Indeed, it seems highly likely to do the reverse.

As Ben Thompson notes in his own post about this mess, most of the regulatory suggestions being proffered will lock in Facebook as an entrenched incumbent. That's because it will (a) create barriers that Facebook can deal with, but startups cannot and (b) focus on "cementing" Facebook's model (with safeguards) rather than letting the next wave of creative destruction take down Facebook.

It seems far more likely that Facebook will be directly regulated than Google; arguably this is already the case in Europe with the GDPR. What is worth noting, though, is that regulations like the GDPR entrench incumbents: protecting users from Facebook will, in all likelihood, lock in Facebook’s competitive position.

This episode is a perfect example: an unintended casualty of this weekend’s firestorm is the idea of data portability: I have argued that social networks like Facebook should make it trivial to export your network; it seems far more likely that most social networks will respond to this Cambridge Analytica scandal by locking down data even further. That may be good for privacy, but it’s not so good for competition. Everything is a trade-off.

Note that last bit? A good way to take away Facebook's dominance is to enable others to compete in the space. The best way to do that? Make it easy for people to switch from Facebook to upstart competitors. The best way to do that? Make it easier for Facebook users to export their data... and use it on another service. But as soon as you do that, you're actually right back into the risky zone. Why is Facebook in so much hot water right now? Because it made it too easy to export user data to third party platforms! And, any kind of GDPR-type solution is just going to lock down that data, rather than enabling them to help seed competition.

Cory Doctorow, over at EFF, has what I think is the most reasonable idea of all: enable third parties to build tools that help Facebook's (and every other platform's!) users better manager and understand their privacy settings and what's being done with their data. That's an actual solution to the problem we laid out in the previous post: Facebook's failed transparency. Doctorow compares the situation to ad-blockers. Ads became too intrusive, and users were able to make use of 3rd party services to stop the bad stuff. We should be able to do something similar with privacy and data controls. But, thanks to some pretty dumb laws and court rulings (including a key one that Facebook itself caused), that's really not possible:

This week, we made you a tutorial explaining the torturous process by which you can change your Facebook preferences to keep the company’s “partners” from seeing all your friends’ data. But what many folks would really like to do is give you a tool that does it for you: go through the tedious work of figuring out Facebook’s inscrutable privacy dashboard, and roll that expertise up in a self-executing recipe — a piece of computer code that autopiloted your browser to login to Facebook on your behalf and ticked all the right boxes for you, with no need for you to do the fiddly work.

But they can’t. Not without risking serious legal consequences, at least. A series of court decisions — often stemming from the online gaming world, sometimes about Facebook itself — has made fielding code that fights for the user into a legal risk that all too few programmers are willing to take.

That's a serious problem. Programmers can swiftly make tools that allow us to express our moral preferences, allowing us to push back against bad behavior long before any government official can be convinced to take an interest — and if your government never takes an interest, or if you are worried about the government's use of technology to interfere in your life, you can still push back, with the right code.

So if we really, truly, want to deal with the problem, then we need to push for more control by the end users. Let users control and export their data, and let people build tools that allow them to do so, and to control and transparently understand what others do with their data.

If someone comes up with a "regulatory regime" that does that, it would be fantastic. But so far, nearly every suggestion I've seen has gone in the other direction. They will do things like force Facebook to "lock down" its data even more, making it harder for users to extract it, or for third parties to provide users the tools they need to control their own data. They'll put useless, but onerous, Know Your Customer rules that Facebook will be able to throw money at to solve, but every smaller platform will find incredibly costly.

I'm not optimistic about how all of this works out. Even if you absolutely hate Facebook and think the company is evil, doesn't care one wit about your privacy, and is run by the most evil person on the planet, you should be especially worried with the regulatory suggestions that are coming. They're not going to help. They're going to entrench Facebook and lock down your data.

from the have-your-cake-and-eat-it-too dept

It can't be overstated that the broadband industry isn't just trying to kill net neutrality, it's trying to gut most meaningful federal and state oversight of entrenched telecom monopolies. While Ajit Pai dismantled consumer protections at the FCC, his "Restoring Internet Freedom" order also ironically attempts to ban states from holding ISPs accountable for privacy, net neutrality, or other anti-competitive behavior. With neither adult regulatory supervision or healthy organic competition in place to keep bad actors in line, the end result will likely be even worse behavior than the kind of Comcast shitshows we've grow used to.

But there's one part of this effort that just faced a notable setback.

Under Ajit Pai's (read: the broadband industry's) proposal, the FCC would take a step back from overseeing ISPs, ceding any remaining authority to the FTC. What Pai and his ISP friends didn't mention is that the FTC's authority over ISPs is severely limited, or that AT&T has spent the last four years in court trying to demolish what authority the FTC does have. That this would leave consumers almost entirely unprotected from monopoly behavior must have simply slipped Ajit Pai's mind during his endless sales pitches for his unpopular repeal.

AT&T's legal gambit began when the FTC sued AT&T back in 2014 for lying to customers about the company's throttling practices. You'll recall that AT&T had been waging a not-so-subtle war on unlimited data users as it tried to drive them to more expensive, metered plans. Amusingly, AT&T lawyers tried to argue in court that the company's "common carrier" status -- the same status it has fought viciously against on the net neutrality front -- exempted it from FTC authority almost entirely under Section 5 of the FTC Act. As we noted at the time, it was a very absurd and Schrodinger-esque tap dance.

At the time, the FTC issued a warning stating that should AT&T lawyers be successful, any company with a common carrier component (from Google to oil conglomerates) could tap dance around FTC oversight. Those without such components could simply buy or merge with a small company with a common carrier component to nab the same benefit. This, the FTC warned, would create a massive accountability and enforcement gap regarding corporate America:

"The panel’s ruling creates an enforcement gap that would leave no federal agency able to protect millions of consumers across the country from unfair or deceptive practices or obtain redress on their behalf. Many companies provide both common-carrier and non-common-carrier services—not just telephone companies like AT&T, but also cable companies like Comcast, technology companies like Google, and energy companies like ExxonMobil (which operate common carrier oil pipelines). Companies that are not common carriers today may gain that status by offering new services or through corporate acquisitions. For example, AOL and Yahoo, which are not common carriers, are (or soon will be) owned by Verizon. The panel’s ruling calls into question the FTC’s ability to protect consumers from unlawful practices by such companies in any of their lines of business."

Unfortunately for AT&T, things didn't work out that way. This week the US Court of Appeals for the 9th Circuit ruled (pdf) AT&T's dream scenario wouldn't be coming to fruition, and that the lawsuit against AT&T for lying to its customers would be moving forward:

"We affirm the district court’s denial of AT&T’s motion to dismiss. Looking to the FTC Act’s text, the meaning of
“common carrier” according to the courts around the time the statute was passed in 1914, decades of judicial interpretation, the expertise of the FTC and Federal Communications Commission (“FCC”), and legislative history, we conclude that the exemption is activity-based. The phrase “common carriers subject to the Acts to regulate commerce” thus provides immunity from FTC regulation only to the extent that a common carrier is engaging in common-carrier services.

While an important win for FTC authority, it's important to note that on the broadband front this only retains the status quo: that is, the FTC's existing, flimsy oversight of broadband ISPs. And that oversight doesn't extend very far. Unlike the FCC, the FTC can't create new guidelines when needed, and can only act against broadband ISPs after the fact -- if it can be clearly illustrated that an ISP engaged in "unfair or deceptive" behavior. In the telecom sector, where anti-competitive behavior is often hidden behind claims of network security, that's often difficult.

That said, FCC boss Ajit Pai was quick to issue a statement (pdf) declaring that this was a win for consumers (correct, sort of), and that the FCC would be working closely with the FTC to protect net neutrality better than before (not correct, and extremely unlikely):

"The Ninth Circuit’s decision is a significant win for American consumers. Among other things, it reaffirms that the Federal Trade Commission will once again be able to police Internet service providers after the Restoring Internet Freedom Order takes effect,” said FCC Chairman Pai. “In the months and years ahead, we look forward to working closely with the FTC to ensure the protection of a free and open Internet."

Again, the FTC's authority over ISPs is extremely limited, and with no actual net neutrality rules to enforce it's comical to think this will be the equivalent of keeping real net neutrality rules (and FCC authority) intact. The throttling lawsuit aside, the FTC pretty rarely actually takes action against ISPs for oceans of bad behavior despite ample opportunity (most notably on the false advertising front). That's in part because the FTC's already under-funded and under-manned, and is tasked with overseeing everything from washer and dryer manufacturers to accuracy in bleach labeling.

So while this ruling is important in terms of ensuring the FTC can police bad actors generally, for the broadband industry specifically it simply means what little authority it has over ISPs remains intact. The shorter version: while uncompetitive broadband monopolies have been successfully gutting most federal and state oversight of their regional monopolistic fiefdoms, their attempt to eliminate all oversight won't be occurring just yet.

from the this-is-not-helping dept

David Kaye, a law professor who has also been the UN's Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (quite the title!) has penned a very interesting article for Foreign Affairs (possibly behind a paywall or registration wall) about how Europe's recent attempts to regulate the internet are now a major threat to free speech. It talks about many issues we've written about, from the awful Right to be Forgotten cases to efforts to fine internet platforms if they don't magically disappear hate speech. While telling internet platforms to "fix it' may feel good, the reality is that it doesn't work, creates more problems, and gives those platforms even more power as the de facto speech police (something we should all be worried about). As Kaye writes:

In September of this year, the commission doubled down on these principles, adopting a formal communication that urges “online platforms to step up the fight against illegal content.” As with the right to be forgotten, the communication puts the companies themselves in the position of identifying, especially through the use of algorithmic automation, illegal content posted to their platforms. But, as Daphne Keller of Stanford’s Center for Internet and Society has argued, the idea that automation can solve illegal content problems without sweeping in vast amounts of legal content is fantasy. Machines typically fail to account for satire, critique, and other kinds of context that turn superficial claims of illegality into fully legitimate content. Automation thus involves a disproportionate takedown of legal content all to target a smaller amount of illegal material online. As a matter of law, as attorney and legal analyst Graham Smith noted, the commission process reverses the normal presumptions of legality in favor of illegality, with safeguards so weak that companies will likely err on the side of taking down content.

The communication expressly avoids the problem of disinformation and propaganda. But regulation of such content may also be on the horizon, as the commission has announced creation of a High-Level Group to address it. Even the staunchest promoters of freedom of expression in European politics recognize that disinformation is a major problem. Marietje Schaake, a Dutch member of the European Parliament and a leading proponent of respect for human rights in Europe, captured a widespread view on the continent when she said in parliamentary debate that she is “not reassured when Silicon Valley or Mark Zuckerberg are the de facto designers of our realities or of our truths.”

He goes on to point out a number of other problematic attacks on free speech in the name of "regulating the internet" -- including the EU's attempt at copyright reform. He concludes by noting we should be very, very concerned about how this will play out for free speech:

These rules should concern anyone who cares about freedom of expression, as they involve limitations on European uses of online platforms. European policymakers have good faith reasons to advocate them, such as countering rampant abuse at a time of human dislocation, political instability, and rise of far-right parties. Yet the tools used often risk overregulation, incentivizing private censorship that could undermine public debate and creative pursuits. Companies may be forced into the position of facilitating practices that undermine their customers’ access to information. Europeans should be concerned, as many are.

Why should anyone else care? In the analog era, after all, a fair response in the United States to speech regulation across the pond (or anywhere else) might have been: that’s the way they do it in Europe. They have different experiences, giving some support (if very limited) to rules that U.S. courts would never permit—such as those against Holocaust denial or the glorification of terrorism.

But online space is different. All of the major companies operate at scale, and there is significant risk that troubling content regulations in Europe will seep into global corporate practices with an impact on the uses of social media and search worldwide. The possibility of global delinking of search results may be the most obvious form of content threat, but all of the rules and proposals noted above may slowly move to undermine freedom of expression. For instance, once a company invests the considerable funding required to develop sophisticated content filters for European markets, the barriers to applying them in American contexts are likely to come down.

There's much more in Kaye's piece and I highly recommend reading the whole thing.

One important point in all of this, which is noted in the quoted section above, but is worth repeating: most of the people pushing for these laws are not doing so with the intention of suppressing speech. Some may be doing so, but most of them really do have good intentions. The problem is that if you don't live in the world of free speech (or spend time watching how speech is stifled in various ways) it's often hard to realize how your "perfectly reasonable" attempt to stop some form of "bad" speech can be turned around and twisted, stretched and abused to silence all sorts of important speech. Even worse, it's very difficult for many people proposing these rules to comprehend that their attempts to, say, silence Nazis online, will almost certainly be used to silence the most vulnerable. Tools to suppress speech are frequently used against the powerless, especially when they try to speak out against the powerful.

The fact that so many new regulations in Europe (not to mention elsewhere) are being pushed with little concern for or regard to the wider impact on free expression should concern us all.

from the if-it-looks-like-a-duck,-swims-like-a-duck,-and-quacks-like-a-duck,-then-it-prob dept

Uber is a company that provokes strong emotions, as numerous stories on Techdirt indicate. Uber has been involved in some pretty bad situations, including inappropriate behavior, special apps to hide from regulators, and massive leaks of customer information. Despite this, it is undeniable that millions of people around the world love the convenience and competitive pricing of its service.

Equally, traditional taxi services dislike it for the way Uber flouts transports regulations that they obey, which is fair enough, and hate it for the way Uber challenges their often lazy monopolies, which is not. This has led to some appalling violence in some countries, as well as numerous legal actions. One of those, instituted by a professional taxi drivers' association in Spain, has resulted in a case before the EU's highest court (pdf), the Court of Justice of the European Union (CJEU), which has just ruled as follows:

the Court declares that an intermediation service such as that at issue in the main proceedings, the purpose of which is to connect, by means of a smartphone application and for remuneration, non-professional drivers using their own vehicle with persons who wish to make urban journeys, must be regarded as being inherently linked to a transport service and, accordingly, must be classified as 'a service in the field of transport' within the meaning of EU law.

The CJEU's reasoning was that Uber is more than a simple intermediation service. Its smartphone app is "indispensable" for the process of agreeing to deals between the driver and the customer, and Uber exercises "decisive influence over the conditions under which the drivers provide their service." As a result, the CJEU ruled that Uber is not "an information society service", but a "service in the field of transport", and may therefore be regulated just like traditional taxi services.

In practice, this means that Uber will be able to operate in the EU, but will be unable to continue with its swashbuckling approach that has seen it ignore many traditional requirements for taxi services. That result will be important for its knock-on effect on other services offered as part of the so-called "sharing economy". In fact, these are better described as new kinds of rental services, and like Uber they have often skirted around existing laws that cover their field of operation. The CJEU ruling, which can't be appealed, is likely to mean that other companies using online technology to provide such services will also need to obey relevant EU laws.

And they're only really getting started. The next big push, lobbied for by Comcast, AT&T and Verizon, is to gut meaningful FCC oversight of giant ISPs, then shovel any remaining authority over to the FTC. This week the FCC and FTC released a joint statement declaring that this new "coordination of online protection efforts" would be a massive boon to consumers while protecting a "free and open internet":

"The Memorandum of Understanding will be a critical benefit for online consumers because it outlines the robust process by which the FCC and FTC will safeguard the public interest,” said FCC Chairman Ajit Pai. “Instead of saddling the Internet with heavy-handed regulations, we will work together to take targeted action against bad actors. This approach protected a free and open Internet for many years prior to the FCC’s 2015 Title II Order and it will once again following the adoption of the Restoring Internet Freedom Order."

Again (as if pointing out facts matters with this FCC), there are numerous falsehoods being pushed here. One being that the 2015 net neutrality rules were "heavy handed," since by international standards they're pretty modest. Two being that the internet somehow magically flourished under Title I throughout history, which ignores the fact that ISPs were classified under Title II with no ill effect for years. Cable (2002) and DSL (2005) were only re-classified under Title I because ISPs promised this reduced oversight would result in incredible levels of competition that you may have noticed never actually materialized.

But the biggest problem the FCC is ignoring is that the FTC doesn't really have much solid authority over broadband providers, and what authority that exists is at risk of being obliterated by an ongoing AT&T court battle with the FTC.

So one, the FTC agency lacks rule-making capabilities, meaning it can only act after bad behavior has already occurred, and only if that behavior can be classified as "unfair or deceptive," which will give companies like Comcast ample wiggle room to pretend bad behavior was necessary for the health of the network. And the FTC is already over-extended and under-funded, so most meaningful ISP oversight will likely fall through the cracks. According to an interview earlier this year with former FCC boss Tom Wheeler, this of course was the ISP lobbyist plan from the beginning:

"In the Trump administration, people are talking about stripping regulatory power from the FCC, and essentially taking the agency apart (including moving jurisdiction over internet access to the Federal Trade Commission [FTC]). “Modernizing” the FCC is the lingo being used. What’s your thought about that?

It’s a fraud. The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along.

So it doesn’t surprise me that the Trump transition team — who were with the American Enterprise Institute and basically longtime supporters of this concept — comes in and says, “Oh, we oughta do away with this.” It makes no sense to get rid of an expert agency and to throw these issues to an agency with no rule-making power that has to compete with everything else that’s going on in the economy, and can only deal with unfair or deceptive practices.

Ironically, this doesn't even cover the biggest problem: that an AT&T legal battle against the FTC could obliterate what little authority the FTC does have over broadband providers. That case, revolving around AT&T's decision to throttle unlimited data customers then lie about it, could result in any company with even a modest common carrier component being able to dodge FTC authority almost entirely. Should AT&T win, the FTC is already on record clearly stating that companies could simply acquire small common carrier oriented businesses to dodge regulatory oversight:

"The panel’s ruling creates an enforcement gap that would leave no federal agency able to protect millions of consumers across the country from unfair or deceptive practices or obtain redress on their behalf. Many companies provide both common-carrier and non-common-carrier services—not just telephone companies like AT&T, but also cable companies like Comcast, technology companies like Google, and energy companies like ExxonMobil (which operate common carrier oil pipelines). Companies that are not common carriers today may gain that status by offering new services or through corporate acquisitions. For example, AOL and Yahoo, which are not common carriers, are (or soon will be) owned by Verizon. The panel’s ruling calls into question the FTC’s ability to protect consumers from unlawful practices by such companies in any of their lines of business."

Mentioning this massive, looming loophole appears to simply have slipped Ajit Pai and the FCC's mind as they sell the public on this turd of a policy proposal. But it gets worse. According to telecom policy expert Harold Feld, even if the FTC manages to win that case, its authority over broadband ISPs remains so shaky, most of the net neutrality violations we've long been familiar with (from ISPs letting interconnection points congest to drive up costs for Netflix, to AT&T blocking Facetime to force users on to more expensive plans) wouldn't be policeable under this new regime.

In short, Feld makes it clear (again) that those stating that FTC authority and existing antitrust will protect us in the wake of net neutrality repeal don't have a solid understanding of how regulatory oversight of the broken telecom market actually works:

"...if you think AT&T or any other broadband provider has the right to decide what content and services subscribers should access — then this Order eliminates what you have considered nasty FCC overreach for the last 15 years (more, really, but at least since the 2002 Cable Modem Order). Don’t bother with handwaving about how you think it won’t happen, or how consumer pushback will keep ISPs from doing bad things, etc. On the question of “does the FTC have the power to stop a broadband provider from saying ‘I’m not going to let you use a particular service or access particular content,’ the answer is a flat out straight up “no.” Because for normal everyday businesses, absent a specific enforceable regulation, offering you some limited service is not “unfair” under 15 USC 45(a). Period. Full stop.

These are all notable, telling omissions by those claiming that fleeting FTC authority will be enough to police massive, predatory duopolies like AT&T and Comcast. It's simply not the case. And again, the goal here isn't just more reasonable or less heavy handed oversight of these giant companies, the goal is the elimination of nearly all meaningful oversight entirely. And while there's still numerous "free market" folks who believe gutting FCC oversight of natural monopolies like Comcast magically fixes a very broken market, that's simply not supportable by history or factual data.

Anybody that believes gutting oversight of some of the least liked and least competitive companies in America magically forges Utopia is either being willfully obtuse for personal financial gain, or they're taking ideological lessons from elsewhere and misapplying them to a broken market they simply don't understand. If allowed to pass, this push to gut oversight of these apathetic duopolies is going to have a profoundly negative impact on the health of the internet, the ability to innovate, and content and service competition for a generation. Pay attention, and don't be part of the problem.

from the and-why-ben-thompson-should-too dept

Long time readers of Techdirt may know (as I've noted several times), that in the mid-2000s when the net neutrality debate was first heating up, I was against the FCC putting in place rules to protect net neutrality. As I explained at the time, the concept of net neutrality was important, but I had so little faith in the FCC that I expected any rules it put together would cause more harm than good. I similarly argued that the fight over net neutrality was really a symptom of a larger problem (the lack of competition in the broadband market), rather than the problem in itself. I was also heavily influenced by a paper that Professor Ed Felten wrote in 2006 called Nuts and Bolts of Network Neutrality, which mostly (as the title suggests) goes through the various arguments for and against net neutrality rules. But it concludes with a position I agreed with for a while: that while net neutrality was important, actual rules that protected it would be tricky to get right -- and the "best" policy might just be the "threat" of rules should broadband providers engage in bad behavior. Thus, that threat, might prevent bad behavior, without having to put in place bad rules:

Net neutrality advocates are right to worry that ISPs can
discriminate—and have the means and motive to do so—in ways that might be difficult
to stop. Opponents are right to say that enforcing neutrality rules may be difficult and
error-prone. Both sides are right to say that making the wrong decision can lead to
unintended side-effects and hamper the Internet’s development.

There is a good policy argument in favor of doing nothing and letting the situation
develop further. The present situation, with the network neutrality issue on the table in
Washington but no rules yet adopted, is in many ways ideal. ISPs, knowing that
discriminating now would make regulation seem more necessary, are on their best
behavior; and with no rules yet adopted we don’t have to face the difficult issues of linedrawing
and enforcement. Enacting strong regulation now would risk side-effects, and
passing toothless regulation now would remove the threat of regulation. If it is possible
to maintain the threat of regulation while leaving the issue unresolved, time will teach us
more about what regulation, if any, is needed.

So, what changed, leading me to eventually move to supporting the Open Internet Order of 2015? Well, as Felten predicted (he's good at that sort of thing...), the market continued to develop, legal precedent got set, and we got a lot more information on what was happening. On top of that, we got decent (though not perfect) rules from the Wheeler FCC, which were non-burdensome, and did quite a lot of good.

I wanted to explore in greater detail what it was that made me change my opinion on this -- and I'll do it while also countering someone else's arguments. A bunch of people have been pointing me to what Ben Thompson from Stratechery has been saying about net neutrality over the past couple weeks. Ben is very smart and extraordinarily insightful on issues related to innovation and policy, and I probably agree with him about 85% of the time. Thus I do find it interesting to explore where we disagree -- and net neutrality is one of those places. But what's most interesting to me is that after going through Ben's thoughts on this multiple times, I think that he's really in the place I found myself a decade ago -- supporting net neutrality, but being wary of the FCC's implementation. So, as part of my reasoning for why I changed my mind, I'll also try to explain why Ben should change his mind as well. If you haven't followed Ben's statements here's his original blog post, which was initially called "Why Ajit Pai is Right," but was later changed to "Pro-Neutrality, Anti-Title II."

His second blog post on it was entitled The Broadband Tradeoff; The Importance of Antitrust. Finally, he did a podcast discussing his views called Two Terrible Options, which focuses on the supposed "tradeoffs" between the current rules and Pai's plan, arguing that he thinks Pai's plan is better for actually keeping net neutrality. But he, unfortunately, bases that conclusion on a series of incorrect or misleading facts, some of which I'll try to correct below.

Ben's starting premise -- which I agree with -- is that there are tradeoffs to any regulations and he, like me, comes from a starting place of being skeptical of the need for regulation without significant evidence that it is necessary.

Any regulatory decision — indeed, any decision period — is about tradeoffs. To choose one course of action is to gain certain benefits and incur certain costs, and it is to forgo the benefits (and costs!) of alternative courses of action. What makes evaluating regulations so difficult is that the benefits are usually readily apparent — the bad behavior or outcome is, hopefully, eliminated — but the costs are much more difficult to quantify. Short-term implementation costs may be relatively straightforward, but future innovations and market entries that don’t happen by virtue of the regulation being in place are far more difficult to calculate. Equally difficult to measure is the inevitable rent-seeking that accompanies regulation, as incumbents find it easier to lobby regulators to foreclose competition instead of winning customers in an open market.

Ben's second point, then, is on the difference between ex ante (beforehand) and ex post (afterwards) regulatory regimes, noting that ex post regimes can allow for more experimentation that can be good:

I absolutely support regulation of ISPs and the preservation of the neutrality (at least in terms of blocking content), I just think we should stick to ex-post instead of ex-ante until there is compelling evidence of systematic abuse.

And, again, that was my position more than a decade ago, and remained as such for quite some time. Here's why I've changed my mind. First, Ben's position (and the position of everyone, including Ajit Pai) who insist that there's no evidence of "systematic abuse" are (conveniently) ignoring (or are unaware of) the long history here. This is not a situation where broadband providers have shown no interest in abuse. They have regularly and clearly stated their intent to systematically abuse their dominant position in the market. As we've discussed, this goes back to AT&T's former CEO Ed Whitacre declaring, back in 2005, his intent to charge edge providers for daring to be what his broadband subscribers demanded from the network:

"Now what they would like to do is use my pipes free, but I ain't going to let them do that because we have spent this capital and we have to have a return on it. So there's going to have to be some mechanism for these people who use these pipes to pay for the portion they're using. Why should they be allowed to use my pipes? The Internet can't be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo! or Vonage or anybody to expect to use these pipes [for] free is nuts!"

But -- Pai, Ben and others may retort -- since then there hasn't been any evidence of them actually doing so. First off, that's not entirely true. There is a decently long list of examples of bad behavior by broadband providers (though Pai and his supporters like to dismiss those as anomalies). But the more important point is that it's always been the Feltenesque threat of rules that have kept the big broadband providers in check. Because it was right around the time that Whitacre announced his intention to start charging edge providers, that then FCC chair Michael Powell had released his guiding principles paper on "preserving internet freedom" that noted the FCC needed to "keep a sharp eye on market practices" to stop broadband ISPs from doing things like blocking competing services. And, soon after that, the FCC fined Madison River for blocking VoIP services.

In other words, the FCC had made it clear that it would crack down on such bad behavior that the big broadband players had clearly stated they planned to engage in. Of course, what followed after that was a series of attempts by the FCC to enforce such rules against other abuses, where the courts repeatedly told the FCC that it didn't have the authority to punish the broadband providers if they were classified as Title I information services. So, you have to know all of this history to understand the threat of systematic abuse. Ben claims that there's no evidence of it, but that's not true. There are the stated intentions of the broadband companies to abuse net neutrality. Beyond the Ed Whitacre statement above, during one of the lawsuits against the FCC (filed by Verizon over the 2010 rules), the company flat out said in court that it intends to violate net neutrality and would do so if the rules were not in place:

"I'm authorized to state by my client today that but for these rules, we would be exploring those types of arrangements," Verizon's attorney, Helgi Walker, said at the time.

So, again, we have multiple examples of the broadband players directly saying that they would violate net neutrality if given the opportunity -- repeatedly held in check by an FCC that tried to set rules saying it wasn't allowed. But eventually, the courts made it clear that such rules were not enforceable under Title I, and the only way to make rules that stick is under Title II, which the Tom Wheeler Open Internet Order finally did.

In other words, the big broadband providers have been clear that they intend to violate net neutrality. They were only held in check by the FCC, but the courts had twice thrown out attempts at rules, until Wheeler reclassified to Title II -- which the courts have since blessed. Given that history, it's reasonable to shift from my Feltonian position of a decade ago to one where it seems fairly obvious that if we are to keep neutrality, we need Title II to make it work. That's exactly what the courts have said.

That's not the only reason either. Another thing that had become clear over the intervening decade was that these broadband companies had only grown larger, more dominant and more powerful -- along with a long history of horrible customer care (being so dominant does that) and outright nefarious behavior (leading to various fines). Going back to the Powell days, where he insisted that broadband-over-powerlines was the Great Broadband Hope for competition, we've seen consistently less and less competition in the broadband realm.

In short, the situation has consistently gotten worse on the competitive front, at the same time the big players have insisted that they intend to initiate bad behavior, and the only check against that bad behavior (the possibility of rules from the FCC) got shot down in the courts until they were reclassified as Title II. Put all that together, and if you support net neutrality, as Ben claims to, there's almost no argument against Title II.

But, while we're at it, we need to correct a few other misconceptions put forth by Ben (and some other supporters of Pai's plan). First, is the idea that this can all be dealt with via antitrust and the FTC. As we noted recently, depending on the outcome of an AT&T lawsuit, the FTC may be blocked from having any regulatory say over broadband providers as well. Relying on the FTC is unlikely to solve many of the problems put forth by violating net neutrality, because they don't fall under areas where the FTC can regulate -- whether it's false advertising/misleading users or outright scams.

Ben, somewhat oddly, makes a number of other factual errors during his podcast. He claims that the 2015 rules have really only caused problems for small ISPs because of the burdensome cost of those regulations. That's... wrong. A whole bunch of those ISPs told the FCC they want the rules to remain. They're not the ones agitating to remove the rules. Indeed, they point out that by killing the rules and consolidating the power of the giant broadband players (i.e., AT&T, Verizon, Comcast) it creates an even more unfair market. Those giants can craft deals with internet services and companies that make it harder for the smaller ISPs to compete.

Along those same lines, Ben insists that the 2015 rules are obviously costly in compliance terms. But there is no compliance issue. There's nothing you need to do to comply other than not block, not prioritize, and not throttle. If you read the 8 pages of actual rules, there's no compliance issue if you're not violating net neutrality. As one small ISP, Sonic, has noted, the 2015 order is only a regulatory burden if you plan to violate net neutrality. And that's because there are some provisions for services that want to violate net neutrality, whereby they'd need to ask the FCC for permission to do so:

The Commission may waive the ban on paid prioritization only if the petitioner demonstrates that the
practice would provide some significant public interest benefit and would not harm the open nature of the
Internet.

Another point that Ben and others have raised, partially correctly, but mostly misleadingly, is that the key issues that people point to recently on the net neutrality front: interconnection disputes and zero rating, were not covered by the 2015 order. In one sense, this is accurate. Indeed, one of our big complaints with the 2015 rules was that they left these loopholes in place. But... that's not (as Ben suggests) a reason to ditch those rules. After all, literally days after the new rules were voted on, the big broadband players magically ended all their interconnection disputes. And that's because they knew that without fixing that, they'd face net neutrality complaints, and the FCC would almost certainly find those efforts to violate open internet principles.

As for zero rating? Well, Ben insists in his podcast that the lack of any FCC authority over that meant that the rules don't matter. Apparently, he missed the fact that the Wheeler FCC actually told companies that zero rating was anti-competitive late last year, telling AT&T it needed to knock it off. Of course, it was easy for people who don't follow this stuff to miss, because one of Ajit Pai's first moves upon taking over from Wheeler was to tell AT&T not to worry about that complaint.

This also highlights another error that Ben made in his writing and podcast. In the podcast, he keeps insisting that the difference between Title II and Title I is ex ante v. ex post rulemaking. Specifically, he argued that using Title II is silly because it only allows preset rules, and doesn't allow for "ex post" rulemaking to go after new bad behavior (citing interconnect and zero rating as examples). But, as we just pointed out in the previous paragraph, under Title II, the FCC could still make some ex post rulings on bad behavior that went against net neutrality (which is also why the interconnection fights disappeared -- because companies knew the FCC would find it problematic). What Ben misses is that under Title I, there's basically no "ex-post" process at all. The Pai FCC is washing its hands of any authority or any concern for neutrality at all (removing even the Feltonian "threat" of rules), and handing it off to the FTC which may not have any authority at all, and if it does, fairly limited authority that can't go after much of the promised bad behavior.

On top of that, there's much more uncertainty without the rules -- and uncertainty itself can be a pretty large regulatory barrier. The rules set out principles and key issues that the FCC believe in about the internet. And they allowed the FCC to step in "ex post" to correct behavior that violated those principles. But under the new lack of rules, there are no such principles. And while the FTC may step in, ex post, to go after some really egregious behavior, it's not clear what it will focus on (if anything) or why. That leads to much greater uncertainty than the set rules of the 2015 Open Internet Order.

During the podcast, Ben also suggests that the FCC's "success" in getting Comcast to stop throttling BitTorrent (pre-Title II) shows that we don't need Title II, and that the FCC's ex-post orders under Title I were sufficient. Except, once again, that ignores the actual history here. Yes, Comcast stopped throttling BitTorrent. But it took the FCC to court and won. So, what "worked" back in 2008 would not work the next time. It's odd to claim that the FCC succeeded against Comcast when it lost the lawsuit. Comcast didn't go back to throttling BitTorrent because other net neutrality rules were still pending (and because the company had agreed to some temporary net neutrality conditions for mergers. But those will go away).

I'll just end with one final oddity from Ben's position. During the podcast, he argues (as we have argued for a long time) that getting more competition should be the focus -- and to get there he's specifically a supporter of local loop unbundling. That's the process by which the service layer is separated from the infrastructure layer and you can have multiple service providers offering service on the same fiber. I'm all for that as well. It's what we had in the dialup days when there was a ton of competition. But... amazingly, what Ben seems unaware of, is that the law that enables local loop unbundling is Title II. It's right there in Section 251(3). Of course, it's important to note that the Wheeler order (unfortunately) deliberately promised not to make use of this part of the law (via "forbearance"). But moving away from Title II is, by definition, moving away from local loop unbundling. So to say you're against Title II, but for local loop unbundling is just... strange.

The larger point here, though is that while there certainly were a number of reasons to be hesitant about supporting Title II or even explicit rules from the FCC a decade ago, enough things have happened that if you support net neutrality, supporting Title II is the only current way to get it. Ajit Pai's plan gets rid of net neutrality. The courts have made it clear. The (non) competitive market has made it clear. The statements of the large broadband providers have made it clear. The concerns of the small broadband providers have made it clear. If Ben does support net neutrality, as he claims, then he should not support Pai's plan. It does not and will not lead to the results he claims he wants. It is deliberately designed to do the opposite.

So, yes. For a long time -- like Ben does now -- I worried about an FCC presenting rules. But the courts made it clear that this was the only way to actually keep neutrality -- short of an enlightened Congress. And the deteriorating market, combined with continued efforts and statements from the big broadband companies, made it clear that it was necessary. You can argue that the whole concept of net neutrality is bad -- but, if you support the concept of net neutrality, and actually understand the history, then it's difficult to see how you can support Pai's plan. I hope that Ben will reconsider his position -- especially since Pai himself has been retweeting Ben's posts and tweets on this subject.

Update: And... just as this post was going live, Pai was, once again, tweeting about Ben's post, even though Pai must know that Ben's claims are wrong, and Pai's plan does not match with what Ben claims:

from the oh-look,-they-were-lying dept

If you've followed the whole net neutrality debate for a while, you may remember one of the more ridiculous talking points when the 2015 rules were put in place: it was the line that the rules were "400 pages of regulation on the internet." People kept listing out the page numbers to suggest how crazy it was, and just how much bad stuff the FCC must be doing in "regulating the internet." Ajit Pai kicked it all off with his tweet with a picture of himself holding the initial version of the rules, complaining that it was "Obama's 332-page plan to regulate the internet."

Here is President Obama's 332-page plan to regulate the Internet. I wish the public could see what's inside. pic.twitter.com/bwwAsk8ZiB

Others picked up on this theme. The eventually released rules were 400 pages exactly, leading to lots of hand-wringing and whining from the usual suspects about how this was some sort of massive takeover of the internet, hidden in so many pages. Of course, that ignored that the actual "rules" take up just a few pages in the order. It's actually eight pages. You can see them on pages 283 through 290 of the 400 page document. All the rest of it just explains the rules -- as is required by law -- responding to comments that had been raised during the open comment period. And, even more pages are devoted to explaining what the rules do not allow the FCC to do. Also, part of the 400 pages included Ajit Pai's own 64 pages of "dissent." It's hard to see how that should be counted as part of the "regulation."

And yet that didn't stop the likes of Ajit Pai from insisting that there were 332 pages of regulations in there. And for others to pick up on similar numbers or the full 400 page number. A group called "American Action Forum" called it a "400 page monstrosity." During her campaign for President, Carly Fiorina said the first thing she would do as President is "roll back the 400 pages of regulations the FCC just rolled out over the internet." Leaving aside that the President can't overrule the FCC like that, she's also relying on that misleading 400 page number. Infowars got in on the action also, saying that the hidden within the 400 page rules were a plan "to seize the entire internet." And, oh boy, were there lots of tweets attacking the whole 400 pages thing. For example, here's Mike Wendy, a consistent gadfly in policy discussions, always always always supporting the telco's position, insisting that the new rules are 400 pages (even though he, of all people, knows better):

But, I'm curious where are all these people now, in commenting on the size of Ajit Pai's order? In its current form, it weighs in at a hefty 210 pages (and that's before additional things like Commissioner statements/dissents will get added). It's true that these "rules" are "shorter" than Wheeler's. The actual rules this time are 2 pages, rather than 8. But, I'm curious why Carly Fiorina isn't complaining about 200+ pages of "new" rules for the internet. Indeed, I can't find any comment from her anywhere. American Action Forum doesn't have a story up complaining about 200 pages of new internet regulations. Infowars seems positively giddy that Ajit Pai has released 200+ pages of new rules, apparently freeing us from some sort of George Soros conspiracy or something. Meanwhile, I've gone through Mike Wendy's tweets, and despite him tweeting many, many, many times about the "400 pages" in Wheeler's rules, somehow he doesn't ever seem to mention the over 200 pages in Pai's rules. He doesn't mention why it takes "over 200 pages to explain" why Pai is rolling back the last order. I wonder why. Instead, he's declaring these new 200+ pages of rules a "win for consumers, society, innovation and free speech." Hmmmmmm. It's almost as if it's not the page count that matters at all...

Incredibly, many of the people now cheering on the new rules are still attacking the original order as being "400 pages" without acknowledging that the new "rules" are over 200 pages.

Obviously no one is complaining about 200+ pages of new regulations because these aren't 200+ pages of new regulations. But neither was the FCC's 2015 order 400 pages of new regulations. There are lots of things to be concerned about with what Ajit Pai is doing here, but it does seem important not to forget the absolute bullshit that some people spewed in response to the 2015 rules, complaining over and over again about how they were so many pages long (even though they really weren't) -- when literally none of those people are commenting on the length of the new order.